The Lawyers’ Committee, along with the law firm of Sullivan & Cromwell, the Brennan Center for Justice, and South Carolina civil rights attorney Armand Derfner represented the League of Women Voters of South Carolina and an individual voter, Craig Debose, as intervenors in this litigation to oppose preclearance under Section 5 of the Voting Rights Act of South Carolina’s photo ID requirement for in-person voting, enacted in 2011.
At the time of this litigation, Section 5 of the Voting Rights Act required covered jurisdictions, including South Carolina, to obtain federal preclearance for all new voting practices and procedures. Preclearance could be obtained by South Carolina demonstrating, either to the federal trial court in Washington, DC or the Justice Department, that a voting change would not have the purpose or effect of discriminating on the basis of race, color, or membership in a language minority group.
Intervenors opposed preclearance because the photo ID requirement would disproportionately limit the voting opportunities of African American voters in South Carolina. Data on ID ownership demonstrated that minority registered voters lacked the identification required by the new law to a significantly greater extent than white registered voters. In addition, Intervenors contended that South Carolina would not be able to meet its burden of showing the absence of a discriminatory purpose.
On October 10, 2012, following a five-day trial, the three-judge district court denied preclearance for implementation of the photo ID requirement in the November 2012 election. However, the court determined that the requirement should be precleared for elections to be held beginning in 2013.
The district court agreed with Intervenors and the U.S. Attorney General (the defendant in the litigation) that the law, as enacted, presented significant concerns that it would have a prohibited retrogressive effect on minority voters. The court agreed that South Carolina’s minority voters disproportionately lacked the types of photo ID that the new law provided for and which were available at the time the law was enacted (a SC driver’s license, an identification card issued by state motor vehicle offices, a passport, and a military ID). The court also indicated concern that certain measures which the State had included in the law to attempt to lessen the disparity, including providing for a new photo registration card (available only at county election offices) and eliminating the fee for a motor-vehicle-office identification card, may have been insufficient to close the racial gap because of the practical burdens associated with obtaining these forms of photo ID.
Nonetheless, the Court determined that the law would not disproportionately and materially burden minority voters for elections beginning in 2013 because of a provision included in the law – known as the “reasonable impediment provision – that allows voters who do not have photo ID, but who have the type of non-photo ID previously allowed for voting (i.e., the non-photo registration card provided to each registrant), to still cast a ballot that will be counted if they sign an affidavit at the polling place and list a reason for not having obtained a photo ID. The court discussed in detail the actions the State had taken after the law was enacted, and continuing through the end of trial, to broadly interpret this provision to allow all registered voters to vote. The court specifically conditioned preclearance of the law on this broad interpretation of the reasonable impediment provision.
The court denied preclearance for the 2012 election because there was insufficient time to educate voters and election officials about the new requirements. In particular, the Court determined that “a large number of difficult steps would have to be completed in order for the reasonable impediment provision to be properly implemented on November 6, 2012.” With less than four weeks remaining before the election, the court concluded that State did not have time to effectively implement these steps.
Finally, District Judge Bates, joined by District Judge Kollar-Kotelly, filed a concurring opinion in which they emphasized “the vital function that Section 5 of the Voting Rights Act has played here.” They observed that, but for Section 5, “South Carolina’s voter ID law certainly would have been more restrictive,” and noted that Section 5 was an important reason why the General Assembly included ameliorative provisions in the law and why the State’s interpretation of the reasonable impediment provision evolved to broadly protect voters who lack the photo ID provided for in the law.
District Court Documents filed by the Lawyers’ Committee:
Click here for the District Court’s Opinion.
Click here for the Lawyers’ Committee’s Memorandum in Support of its Motion to Intervene and here for the amendment to the motion to intervene.
Click here for the Lawyers’ Committee’s pre-trial brief.
Click here for the Lawyers’ Committee’s proposed findings of fact and conclusions of law.
